Anti-corruption body ICAC has lost its way

Anti-corruption body loses its way

Australia’s most well-known anti-corruption body, the NSW Independent Commission Against Corruption, is reduced to an untenable position with its originating architect, Gary Sturgess, calling on ICAC commissioner Megan Latham to stand aside and its founding premier, Nick Greiner, launching a damning critique of ICAC’s culture.

This comes with the release yesterday of a statutory oversight report that exposes ICAC for unlawful actions, unreasonable, unjust and oppressive behaviour and deep reluctance to accept the accountability safeguards essential for an institution with such exceptional powers.

The report, released yesterday by the inspector with statutory powers to oversee ICAC, David Levine QC, documents a serial abuse of powers on ICAC’s part that shows it is seriously compromised in the discharge of its anti-corruption responsibility on behalf of the parliament and public of NSW.

The Levine report concerns ICAC’s extraordinary performance in its relentless pursuit of deputy senior crown prosecutor Margaret Cunneen SC in its ­“Operation Hale” — an issue that Cunneen took to the High Court and won against ICAC.

While Levine makes no finding in relation to “improper motive” on ICAC’s part, this report, in its content, narrative and documentation, is sufficient to constitute a “no confidence” in ICAC commissioner Latham. It depicts an institution arrogant, self-righteous and resistant to established oversight mechanisms. It will put immense pressure on NSW Premier Mike Baird to act.

In response, Baird said ICAC must use its immense powers ­“responsibly” and conceded ­Levine’s report raised “very ­serious issues” to be assessed by parliament’s ICAC oversight committee.

“I think it is now very difficult for the commissioner to continue in her position,” Sturgess said of Latham. “I think that, given this report, she needs to stand down, or if she disputes the report’s findings, then she should stand down until the matter is resolved.”

In an exclusive interview with Inquirer, Greiner, who created the anti-corruption watchdog, said its standing had been undermined, that even more revised governance arrangements were essential and an injection of “common sense and better judgment” was now urgent. “On the current evidence, we cannot rely on the existing ICAC system to deliver fair or reasonable results,” Greiner said. “What we have at present is a commissioner who in the discharge of ICAC’s functions has tolerated behaviour that seems to be unjustified.”

For Greiner, the Cunneen case illustrates the abuses of its authority that has regularly plagued ICAC. His critique of Latham as commissioner is searching.

Greiner said: “The situation can be put simply: assume that Cunneen did everything she was alleged to have done. I doubt that, but let’s assume that for the sake of argument. The truth is you would have to be deluded as a commissioner and as an organisation to engage in the behaviour ICAC adopted in relation to ­Margaret Cunneen.

“It defies common sense that ICAC should have passed this off as part of its charter. This was a position that could never be sustained. It was just crazy and, in the end, the High Court found against ICAC.”

In another exclusive interview with Inquirer, Sturgess, an anti-corruption campaigner who provided Greiner with the framework for ICAC a generation ago, said there were two standout elements from Levine’s report — that he ­declined to make a finding on “improper motive” but that he concluded that ICAC, in the Cunneen affair, had been an “example of unreasonable, unjust, oppressive maladministration”.

“These critical words in the report are striking,” Sturgess said. “This situation is complicated because there is clearly a sparring match going on between these two, the commissioner and the ­inspector.

“But such a conclusion from a former judicial figure, even short of a finding of culpability in relation to motive, is about as damning as it is possible to get. I think it is now very difficult for the commissioner to remain in her position and to continue to conduct inquiries. It is in the interests of the organisation that she stands aside.”

Sturgess said “it is a matter of grave concern” that commissioner Latham, assuming the Levine report is accurate, was not responding to questions and issues from the oversight body. He said that “any organisation such as ICAC must be subject to checks and balances” and it was a “serious concern” this was not accepted.

Responding to the report yesterday, Latham rejected Levine’s finding about unlawful conduct in ICAC’s investigation, and denied she had refused to meet Levine.

The report, however, reveals an irrefutable saga of broken relations between Latham and Levine. It is obvious the inspector’s task of ICAC oversight has been plagued by distrust, bitter email exchanges and personal accusations.

This dysfunctional situation is untenable. There is one certainty — unless reasonably prompt action is taken by the Premier ICAC’s brand will be further tarnished. The longer this saga is reviewed the more Latham’s judgment is likely to be exposed.

Greiner said: “My view is that it’s not plausible for the Premier, Mike Baird, to do other than take the position of ‘zero tolerance’ against corruption. ICAC’s powers are strong and they need to be strong. I think winding back the powers is not the answer. The real problem with ICAC is the lack of common sense and absence of managerial competence.”

Reviewing ICAC over a generation, Greiner said: “The problem from the start was the lack of high-quality commissioners and high-quality counsel assisting. I think it was (former High Court judge) Ian Callinan who once said that television cameras and lawyers are not a good mix.”

Greiner said a cult had developed where ICAC public hearings resembled “a walk of shame that pandered excessively to prurient interests”. This was “obviously bad” for ICAC as an institution. He criticised the “clownish” behaviour of counsel assisting, Geoffrey Watson, and the inaugural ICAC commissioner, Ian Temby whose finding saw Greiner, manifestly a non-corrupt politician, having to resign as premier.

Levine’s report analyses the ICAC saga, beginning with its investigation into allegations that Cunneen acted to “pervert the course of justice” after a car accident at Willoughby, Sydney, on May 31, 2014. It was alleged Cunneen counselled the driver, Sophia Tilley, her son’s girlfriend, to pretend to have chest pains to inhibit police from obtaining blood alcohol levels, though it later emerged she had zero alcohol in her system.

Given that ICAC’s job is serious corruption by public officials, Levine finds no evidence relating to Cunneen “warranting the intervention and intrusive exploration by one of the most powerful agencies of this state”.

He says, applying the tests that relate to ICAC investigations, the alleged corruption issue was neither “serious nor systematic”. In short, it was not the legitimate business of ICAC. Indeed, he says it “could be described as trivial”.

Levine calls the Cunneen investigation “the low point” in ICAC’s history. He affirms that its powers, properly exercised, remain “an essential safeguard to the integrity of the governance of this state”. He agrees with former ICAC commissioner David Ipp that ICAC blundered in the Cunneen investigation and was guilty of “an error of judgment” in pursuing the issue.

Levine criticises ICAC’s surveillance of the four “targets” in the Cunneen matter, believes the seizure of mobile telephones from Cunneen’s home was “unlawful” and argues that it was “unreasonable” to pursue the Cunneen matter “within the jurisdiction of ICAC as it was then understood”.

Having reviewed all the available material supporting an allegation of perversion of justice against Cunneen he says the issue could either have been delegated or referred to the Director of Public Prosecutions without further involvement of ICAC.

Levine does, however, venture on to the highly sensitive issue of the personal connection between Cunneen and Latham, saying they had known one another since 1986.

Cunneen told Levine that for about six years between 2005 and 2011 Latham’s personal trainer was living in the house next to Cunneen and, as a result, there were “frequent meetings” between Cunneen and Latham.

“This area is tricky,” Levine says. “It is of particular concern to Ms Cunneen.” He says the legal profession can be “small, intimate and otherwise closely connected”.

While Levine says he has not spoken to Latham on any aspect of this operation, there can be an “acute difficulty” arising from the personal acquaintance of the parties and he draws attention to the other preferred options for Latham in handling the matter.

Levine is not just critical of ICAC’s investigation. He is scathing of the final stage of this process, after ICAC’s pursuit of criminal proceedings against Cunneen were rendered futile, when ICAC then referred 2274 pages of Cunneen’s private phone messages and material dating back to 2005 to the DPP.

ICAC said it was providing material to the DPP to consider whether charges should be laid against Cunneen and also whether disciplinary proceedings should be taken against her for code of conduct breaches. Levine said he had the “gravest reservations as to the fairness and propriety of this step”.

He said: “The short point is, material obtained by the ICAC from Ms Cunneen’s phone going back to 2005 was used for the sole purpose of a reference to the DPP for consideration of disciplinary matters unrelated to anything up to that time with which ICAC had concerned itself.”

“It is not for me to advise the DPP,” Levine says. “No doubt he will take into account the whole history of Operation Hale and have applied to the task a well-balanced sense of reality and proportion. This aspect of the conduct of the ICAC I describe, and I believe any ordinary reasonable person would describe, as unreasonable, unjust and oppressive.”

He is scathing of the ICAC media release of May 27, 2015, that explained the reference to the DPP. Levine says this release is the equivalent of an “indictment” against Cunneen. The media release is “another example” of “unreasonable, unjust, oppressive maladministration” from ICAC.

For Levine, this is “a last-ditch stance of defiance” from ICAC reflecting a “concluded view” of what Cunneen had done. “It is an abuse of the powers reposed in it,” he says of ICAC’s declaration.

This report may trigger a rolling dispute between Levine and Latham. They have been in a long private dispute. Yet ICAC, judging from the Cunneen event, seems blind to its defects and riddled by poor judgment.

Greiner’s message is that action is needed to restore confidence in ICAC as an institution. He says that means a review of public hearings, better judgment from senior ICAC officials, a clearer focus on serious public corruption, revised governance and lawyers less swayed by publicity and celebrity.

He said: “I think the lesson over the past 25 years or so has been the great difficulty in getting people who have both the legal skills, on one hand, and the management and common sense on the other.

“The point about the report by David Levine as inspector is that he is coming after the event, after the damage has been done. This is an inadequate process. We need more of a review system before the event to inject better judgment into the ICAC process.”

Referring to the fact that ICAC has claimed the careers of two Liberal premiers, Greiner said: “Whatever people might have said about myself and Barry O’Farrell, and about our defects, I don’t think people felt that we were corrupt public officials. For ICAC, this is not a great track record.”